Wrongful Death Lawyers in Florida

Who May Bring a Wrongful Death Claim in Florida

Only the personal representative of the estate of the person who died can file a Florida wrongful death lawsuit. Under § 768.20, the personal representative recovers “for the benefit of the decedent’s survivors and estate” all the damages the Act allows. Survivors do not file separate suits of their own. Instead, all potential beneficiaries, including the estate, must be identified in the complaint, with each one’s relationship to the decedent alleged (Fla. Stat. § 768.21).

The probate court appoints the personal representative, following an order of preference set by Fla. Stat. § 733.301. When there is a will, the person the will names comes first. When there is no will, the surviving spouse comes first, then the person selected by a majority in interest of the heirs, then the heir nearest in degree. Read our explainer on who can file a wrongful death lawsuit in Florida.

Who Counts as a Survivor

Damages under the Act go to the estate and to the “survivors,” a term defined in Fla. Stat. § 768.18(1): “‘Survivors’ means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.”

So a spouse, child or parent qualifies without showing dependency, apart from the rule for a father’s child born out of wedlock. Other blood relatives, and adoptive brothers and sisters, qualify only if they were partly or wholly dependent on the decedent for support or services.

One more definition matters. In this Act, “minor children” means children under 25 years of age, notwithstanding the age of majority (§ 768.18(2)). Several of the damages below turn on that line.

Two Kinds of Damages: the Survivors’ and the Estate’s

Section 768.21 divides a recovery into two parts. The first belongs to the survivors, by relationship:

• Each survivor may recover lost support and services, from the date of the injury into the future.
• A surviving spouse may also recover for lost companionship and protection, and for mental pain and suffering.
• Minor children, and all children if there is no surviving spouse, may also recover for lost parental companionship, instruction and guidance, and for mental pain and suffering.
• Each parent of a deceased minor child may also recover for mental pain and suffering; a parent of an adult child, only if there are no other survivors.
• A survivor who paid medical or funeral expenses may recover them.

The estate’s part is recovered by the personal representative: the decedent’s lost earnings between the injury and the death, less the survivors’ lost support; in some cases, lost “prospective net accumulations,” the savings the decedent probably would have left; and medical or funeral expenses charged to the estate or paid by or for the decedent. The estate’s award, not the survivors’ shares, is subject to creditors’ claims under probate law (§ 768.21(7)). Read more about what damages a family can recover in a Florida wrongful death case.

The Deadline to File, and the Exceptions

Florida’s limitations statute lists an action for wrongful death among the actions that must be commenced within two years (Fla. Stat. § 95.11(5)(e)). In most cases, the two years run from the date of death, not the date of the accident. Florida’s 2023 tort-reform law, HB 837, did not change this period.

When the death was caused by medical care, another paragraph must also be checked. Section 95.11(5)(c) governs medical malpractice actions, including claims “because of the death” of a person. Its two years run from the incident, or from when the incident was discovered or should have been discovered, and in most cases no action may be brought more than four years after the incident. Which paragraph controls, and when the clock started, depends on the facts.

One exception removes the deadline. Under § 95.11(11), a wrongful death action against a natural person for an intentional tort resulting in death from acts described in Fla. Stat. § 782.04 (murder) or Fla. Stat. § 782.07 (manslaughter) may be brought at any time, and no arrest, criminal charge or conviction is required. The exception reaches only the claim against that person; a negligence claim against someone else, such as a property owner whose security failed, stays on the two-year clock.

Do not wait. Evidence can be lost, witnesses become harder to find, and a personal representative normally must be appointed by the probate court before the suit is filed. When the claim arises from medical care, Florida’s medical negligence presuit steps also come first.

The Medical Negligence Exception, and Where Its Repeal Stands

One subsection limits what some survivors may recover when medical negligence caused the death. Fla. Stat. § 768.21(8) reads: “The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).” That definition covers “a claim, arising out of the rendering of, or the failure to render, medical care or services” (Fla. Stat. § 766.106(1)).

In plain English, when medical negligence caused the death:

• An adult child cannot recover for lost parental companionship, instruction and guidance, or for his or her own mental pain and suffering.
• A parent of an adult child cannot recover for mental pain and suffering.

Because the Act defines “minor children” as children under 25, these limits reach children who are 25 or older. The subsection does not affect the estate’s claim or the other survivors’ claims, such as a surviving spouse’s or a minor child’s. Adult children and parents also keep any claim for lost support and services, and for medical or funeral bills they paid. In public debate, the provision is sometimes called the “free kill” exception.

Checked October 14, 2026: HB 6017 (2025), which would have repealed the exception, passed both chambers and was vetoed by the Governor on May 29, 2025; HB 6003 (2026) passed the House and died in the Senate Rules Committee on March 13, 2026; the exception remains in force.

How to Choose a Wrongful Death Attorney: What to Ask in a Consultation

If you are looking for a wrongful death lawyer in Miami, or anywhere in Florida, a consultation is where you learn how a firm would handle your family’s case. Ask direct questions. These are the ones we suggest asking any firm, including ours:

1. How many wrongful death cases has the firm tried to a verdict?
2. Who will actually handle our case, and who will be in the courtroom if it goes to trial? Ask for names.
3. How will the personal representative and the survivors’ claims be organized? The personal representative files for everyone, but each survivor’s losses are different. While the case is pending, a settlement as to amount or apportionment that any survivor objects to, or that affects a survivor who is a minor or an incompetent, is not effective unless the court approves it (Fla. Stat. § 768.25).
4. If the death arose from medical care, how will the firm handle the presuit requirements? Before a medical negligence suit is filed, Florida requires a presuit investigation and a notice of intent to each prospective defendant, and “[a] suit may not be filed for a period of 90 days after notice is delivered to any prospective defendant” (Fla. Stat. § 766.106(3)(a)).
5. What is the fee, and how are case costs handled? Ask to see both in writing. At Silva & Silva, the answer on fees is no fees unless we recover.
6. How often will we hear from the lawyer handling the case? Ask who your day-to-day contact will be.
7. What happens if the case does not settle? Silva & Silva prepares every case for trial from day one.

Silva & Silva is a trial firm in Coral Gables that focuses on complex injury and death cases across Florida. Our office is in Miami-Dade County, and we serve clients in English and Spanish.

The Wrongful Death Cases Silva & Silva Handles

Medical negligence. Deaths caused by surgical or anesthesia errors, a missed or delayed diagnosis, or a medication error. Silva & Silva was founded by two brothers whose own mother was lost to medical negligence in 1979. Read about our medical malpractice cases.

Fatal truck crashes. In truck accident cases involving tractor-trailers and other commercial trucks, the driver, the trucking company and others may share responsibility for a death.

Building and structure collapses. Deaths when a building, a bridge or another structure collapses, and deaths on construction sites, where owners, contractors and engineers may share responsibility. See our construction accident cases.

Aviation. Deaths in commercial and private aircraft crashes, where an operator, a maintenance company or a manufacturer may be responsible. See our air disaster cases.

Cruise and maritime. Deaths on cruise ships, boats and other vessels. Florida’s Act reaches deaths on navigable waters, but federal maritime law may govern instead, and its deadlines can differ. Learn more about our maritime negligence cases and cruise ship accident cases.

Negligent security. Deaths from shootings, assaults and other violent crimes at apartment complexes, hotels, parking lots and other properties where the owner’s or manager’s security may have fallen short. See our negligent security cases.

Drowning. Drownings at home, apartment, hotel and community pools, where barriers, gates or supervision may have failed. See our swimming pool negligence cases.

The firm also handles deaths in car crashes, motorcycle crashes and pedestrian accidents, in nursing homes, at workplaces, and from unsafe property conditions.

If you have lost someone and want to understand your family’s options, request a free consultation.